Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

2nd reading (Hansard): House of Lords
Monday 16th July 2018 Lords Chamber

[Lord Touhig (Lab)]

My Lords, a recent report by the Joint Committee on Human Rights called for a statutory definition of what constitutes a deprivation of liberty. The Bill does not offer such a definition. If it did, we would have clarity for families and front-line professionals; without it, there is a risk. We are reminded in an excellent paper from the Library that the Law Commission, which reviewed the existing legislation, concluded that the deprivation of liberty safeguards failed to offer sufficient protection of the rights of those deprived of liberty. Indeed, all too often, according to the report, it had been “theoretical and illusory”.

The Bill widens the number of living arrangements that are covered by the current deprivation of liberty safeguards system to include any setting. For it to apply, an individual must be aged 18 or over, lack capacity to consent to the living arrangement and be of unsound mind. To be authorised by a council or hospital, the living arrangement must be “necessary and proportionate”. There are also proposals for consultation on the living arrangements and for a “pre-authorisation review”. Assessments under the proposals will be carried out by councils or hospitals unless the individual lives in a care home, in which case it would be carried out by the care home manager. The last criterion would include autistic people who live in residential care. In a response to the Law Commission, the National Autistic Society, of which I am a vice-president, welcomed the attempts to create a simplified administrative regime that could tackle the significant delays in the current system.

However, many concerns remain. In its current form, the Bill does not adequately secure the rights of autistic people. Under the current deprivation of liberty safeguards system, a deprivation of liberty needs to be in an individual’s best interests for it to be authorised. The Bill moves away from best interests. Why does it do that? Instead, to be authorised, a living arrangement must be “necessary and proportionate”. The new criteria risk losing sight of what is best for the individual and what the individual wants. Let us be wary of enacting legislation that pays scant regard to the individual, in particular an individual who, in the context of the Bill, is perhaps the most vulnerable in society.

There is a duty to consult on care arrangements. The Bill says that the purpose of this consultation is to ascertain the individual’s wishes. However, the list at paragraph 17(2) of Schedule 1 omits the individual altogether. Although an autistic person might lack capacity to decide about living arrangements, their preferences or wishes should be an important factor in any decision about their lives. I am not sure what a decision-maker is expected to do with the results of this consultation. It is not made clear whether this is part of a determination that an arrangement is “necessary and proportionate”. This needs to be clarified. I hope that it will be.

The National Autistic Society echoes concerns expressed by Mencap that this removes the rights of deputies or lasting powers of attorney to refuse the authorisation of a deprivation of liberty. Overall, the lack of inclusion of best interests, the lack of interest in trying to ascertain what the individual wants and the removal of the rights of deputies or lasting powers of attorney is most definitely a backward step in putting the individual at the centre of any decision-making process. The Bill surely should enshrine individuals’ best interests, as did the Law Commission’s proposals. The role of these interests within a determination about a deprivation of liberty must be clarified and I hope that it will be.

A pre-authorisation review is required in the Bill to agree to a deprivation of liberty. It says that this should be carried out by someone who is not involved in day-to-day care of the individual. However, the wording causes me concern. As drafted, it is not strong enough to secure independence. It will be carried out by an independent approved mental capacity professional only if it is reasonable to believe that the individual does not want to live in that arrangement. It is unclear how the reasonableness of this will be determined. The wording is too weak to secure the rights of autistic people who might lack capacity. Even more astounding, there is no duty whatever for the person carrying out a review to have met the individual whose case this person is reviewing. This simply cannot be right. The Bill must require independent reviews by an approved mental capacity professional in all circumstances.

If an individual resides in a care home the Bill’s requirements to carry out an assessment and consultation fall to the care home manager. While this would relieve some of the administrative burden on councils and hospitals, the National Autistic Society is concerned, and rightly so. First, the administrative burden will simply shift to care home managers, who are already stretched and may not have received the training needed to carry out these tasks. Secondly, the process in the Bill does not adequately safeguard against these assessments being, in effect, rubber-stamped by councils and hospitals, particularly while the duties around pre-authorisation reviews are so weak. This could lead to a conflict of interest, whereby care home managers are de facto authorisers of deprivations of liberty. The Government should consult more widely on this. Surely we need much more consultation.

The Bill requires that an authorisation can last up to 12 months. At the end of this period, it can be renewed for another 12 months or less. However, subsequent renewals may last for up to three years. Under the Care Act 2014, reviews of care and support plans should take place annually. Any deprivation of liberty should be considered within these reviews. It would be far more appropriate to allow for ongoing renewals of up to one year, to align more closely with care and support planning. I hope the Bill might be amended so that we can provide for 12-monthly reviews.

All individuals and their appropriate person should be able to access support from an independent mental capacity adviser with the right skills to challenge unnecessary deprivation of liberty. This is currently not in the Bill. Rights to independent mental capacity advisers should be extended to cover all individuals.

There is much to be concerned about in this Bill. I really hope the Government are in listening mode. They certainly need to be.

Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Lords Chamber

The noble Lord, Lord Hunt, is very polite about care home managers. I am quite happy to be less polite. Of course there are some good, even excellent, ones. However, the notion that the majority who flit through the system on short-term contracts and training—many of whom come from outside the European Union—can, in half a day, master the Mental Capacity Act, be trained through this process to make a proper assessment and identify people within the meaning of the Act is completely ludicrous. It will not be possible. The costs of that sort of training programme and of rejigging the sort of people who are being appointed to roles to take account of this is quite outwith the scope that the Bill is likely to achieve. It is worth thinking long and hard about both the conflicts of interest and who is being appointed to make these extraordinarily difficult decisions. I support the noble Lord, Lord Hunt. I doubt whether we should stop the debate at this point but we will return to this important issue in other amendments.

[Lord Touhig (Lab)]

My Lords, I thank the Minister and his team for their engagement with Members across the House, which has been very helpful. I strongly support the attempt, on the initiative of my noble friend Lord Hunt, to have this clause stand part debate.

In the past day or so, I have spent some time looking at advertisements for care home staff and managers. They vary greatly; there is no standard at all. One advert for the role of a care home manager said, “You will assume all aspects of responsibility for your care home and have exceptional man management skills”. A minimum of two years’ experience of managing a care home, with no other qualifications, was the only candidate requirement. Another advert said that there was an opportunity for someone seeking to develop their career who must have a solid residential care background on applying. It said that applicants should have a full working knowledge of CQC requirements, possess leadership and organisational skills, and be either qualified in or working towards an NVQ level 5 in social care management, a QCF 5 or equivalent. It took more of an interest in qualifications and was a bit hit-and-miss on whether the person should be fully trained. It said that candidates should have three years’ experience of social care and it would be preferable if they had some previous management experience.

A third advert offered an exciting opportunity for a care home manager with a view to becoming a registered manager if the applicant was not one already. The skills and qualifications needed were an NVQ level 5 in leadership and management, or to be working towards that. Again, that does not mean being qualified with all the necessary education and training. A fourth advertisement sought candidates with proven home management experience, strong marketing, commercial and business acumen and a clear and thorough knowledge of CQC standards. Your Lordships should note that possessing knowledge of CQC standards came third after marketing, commercial and business acumen.

My point is that this demonstrates that there is no agreed national standard for care home manager training. With this Bill, we are proposing to give them a huge new responsibility that will affect the quality of life of many vulnerable people in our society. This really needs to be revisited. We are taking a big risk with people who have no one else to defend them if we do not start defending them here.

[Baroness Finlay of Llandaff]

My Lords, to intervene fairly briefly, it is important that we remember that the current DoLS system has effectively fallen over. We have 108,000 people currently waiting to be assessed, so we have to do something. We cannot leave it running so there is an urgency to come up with some way forward. I remind the Committee that, whenever somebody is in a place of care such as a care home, the deprivation of liberty safeguards application—form 1—is a request for standard authorisation and has to be completed and sent in. That form asks about the purpose of the standard authorisation, and for a relevant care plan to be attached. It also asks why less restrictive options are not possible, and other things. So a degree of assessment is already going on at the care home and these forms are sent in. They are then sent to somebody to authorise them.

I worry that, in some of the briefings that we have had, it looks as though the care home manager will be able to authorise in totality, whereas, as I understand it—the Minister may correct me if I have this wrong—the care home manager will still be required to have the responsible body authorise. That responsible body will be able to look—and one would want them to look—at objections that may come forward from somebody. It is to be hoped they will go and visit if they feel there is a discrepancy between the care plan submitted and the original care and support plan that came from the local authority, which may have been involved in the pre-placement assessment that went on.

The idea behind these new approvals is that there is portability: the person may reside in one place, then be moved to hospital, go to outpatients, spend time in hospital and then come back to the care home. Within that portability, however, there is a requirement to review, if the circumstances change. We will come later to amendments that look at discrepancy between the care plan and the care and support plan as submitted. In other words, these are things that should trigger red flags in the mind of the authorising body, rather than the authorising body just being a rubber-stamping exercise, which is, I think, a misunderstanding that there may have been. If it is a rubber-stamping exercise, there are all kinds of dangers in that. Somehow, we have to filter out those people who really need an in-depth assessment and review from those people where the current processes are just burdensome, time-consuming and not contributing to improving their care. That filtering is really difficult. I offer that in the debate at this stage because it is worth looking at these forms, which I hope will be improved because there is not that much room to write on them.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I would like to follow that up. Clearly, the Government accepted in principle that these provisions should extend to 16 and 17 year-olds but then entered the caveat that,

“changes will need to carefully consider wider rights”,

as the noble Baroness has said. The Government said then that they would consider these matters carefully before bringing forward legislation. The question I would like to ask is: how far has that work got, and is there a prospect of seeing legislation in the reasonable future in relation to it, or is this our opportunity? Other opportunities may not come for some time to come. I realise Ministers are reluctant to commit themselves to particular legislation, but it would be helpful to the House if the Minister could at least give some indication of the work that is now being undertaken and when it is likely to come to fruition.

[Lord Touhig]

My Lords, the Law Commission supports this and I certainly support the amendment as tabled by my noble friend Lady Thornton. Including 16 and 17 year-olds would offer some legal protection for organisations such as the National Autistic Society, of which I am a vice-president. We do a huge amount of work with young adults and strongly believe that this is important for them—for their work and for their future. This was raised during Second Reading by a number of people—I was one of those who raised the matter. The Minister indicated that he would look at it and, indeed, in a letter from him on 24 July, he said:

“During my speech I indicated that I would like to reflect on the matter of how the model could fit with 16 and 17 year old young people”.


Perhaps, when he gets up, he will have some good news for us.

[Lord O'Shaughnessy]

I would like to thank the noble Baronesses, Lady Thornton and Lady Murphy, for tabling these amendments, which seek to apply the liberty protection safeguards to 16 and 17 year-olds in the same way that they apply to adults. Noble Lords have been absolutely right to point out, as they did at Second Reading, that in the Government’s response to the Law Commission report, we accepted in principle that 16 and 17 year-olds would be included in the new liberty protection safeguard system. I know that noble Lords are motivated not just get to get this right in general but also, as the noble Baroness, Lady Thornton, said, in relation to specific cases that are known to them, sometimes very close to home. I understand and sympathise absolutely with the desire to do that.

The noble Lord, Lord Touhig, is also right to say that it is something I said I would consider and would seek to bring further news. We are still considering this very actively. What is clear even from this brief debate is that, as the noble Baroness, Lady Tyler, pointed out, there are some critical interactions that we need to get right with other bits of the system. These include the role of parents, how the safeguards would apply to looked-after children, and interaction with processes such as the education, health and care planning processes for those with special needs and disabilities. As the noble Baronesses, Lady Murphy and Lady Thornton, reminded us, we need also to be mindful of the current court case.

At this stage, I repeat and underline our commitment to make progress and to offer the best possible protection for this group of vulnerable young people. Proper scrutiny and detailed thought is required, and that thought is ongoing. I recognise the arguments for including this group. Like all noble Lords, I want to make sure we get this right and get the interactions right, so that they do not end up being fixed subsequently by the courts, as the noble Lord, Lord Hunt, pointed out in a different context.

Our intention is to use the time between now and Report to continue having those discussions, both with noble Lords and with stakeholders throughout the sector, to make sure we can get this right. On that basis, having given the commitment that we will work hard to do what we can between now and Report to get the right outcome, I hope the noble Baroness will be prepared to withdraw her amendment.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, my Amendments 27 and 28 follow the same lines of argument that we have heard from the noble Baronesses but relate to paragraph 16, “Determination that arrangements are necessary and proportionate”, on page 12 of the Bill.

I know the Minister will refer us back to Section 4 of the Mental Capacity Act, which is very comprehensive in defining what “best interests” are. Clearly, the intention is that, because it is stated there as a principle at the front of the Act, that permeates through all of the issues that we will be discussing in this amendment Bill. There is always an issue when you have an amendment Bill. It is not incorporated in the principal Act and is quite difficult to follow. It will be difficult to follow for the practitioners who are going to have to operate the new provisions. This must relate, too, to the code of practice. We seek certain reassurances that it will be made clear to the people at the front line who are going to operate it that the best interests provisions in this amendment Bill will apply equally.

What is confusing is the wording “necessary and proportionate”. In a sense, the Government are saying there is a qualification—that things have to be necessary and proportionate. I wonder whether that is helpful. It is confusing that we have a qualification of necessary and proportionate, but in the principal Act it is “best interests”. Clearly, these are probing amendments, seeking to tease this issue out, but I wonder whether the Government could give further consideration to how we can ensure that everyone involved is very clear that the best interests apply.

[Lord Touhig]

My Lords, at Second Reading I expressed the hope that the Government were in listening mood. They certainly needed to be. To be fair, the Minister and his team are to be congratulated on the level of engagement that they have been willing to participate in to help us perhaps make a better Bill at the end of the day. But—there is always a but—the Bill might have had a smoother passage if the Government had published an equality impact assessment. They are yet to do so; perhaps the Minister can tell us why. Many concerns have been expressed in debate on other amendments, which might have been assuaged—and we might have made more progress—had such an assessment been available to us.

Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 5th September 2018 Lords Chamber

[Lord Touhig (Lab)]

My Lords, I am very pleased to follow the noble Baroness. I think she made her maiden speech at Second Reading; it was an important contribution. She has sat through this debate and made a few important points. We certainly welcome her and look forward to further remarks from her as we proceed with our considerations.

I support the amendment in the name of the noble Baroness, Lady Hollins, addressing as it does concerns expressed by me and other noble Lords at Second Reading. The Bill provides a different route of authorisation for a deprivation of liberty when a cared-for person lives in a care home. In this circumstance, it places a new duty on care home managers to carry out the assessments and consultation prior to authorisation. I echo the noble Baroness’s concerns that this creates a conflict of interest. We have already considered some of these aspects earlier but none of us needs make any apology for coming back to it because it is so very important. Care home managers will have an important insight into an individual’s needs and they should be included as a source of information, but a responsibility to carry out the assessment requires more than simply providing information. It is a different skill set from their expertise as a provider.

Furthermore, care home managers are not independent and although they are not responsible for granting the overall authorisation, the contents of those assessments will be key to local authorities’ overall determination. This is particularly important where there are concerns about weaknesses in the pre-authorisation review outlined in Clause 18. That clause does not, as drafted, secure the independence of the person carrying out the review. It does not ensure that a rigorous review is carried out. As it stands, it risks the pre-authorisation review. The overwhelming majority of care home managers would undertake their duties honestly and assiduously.

However, we have to face facts. This Bill, as drafted, leaves the door open for a dishonest assessment, and we have to speak plainly about it. That should concern this Committee as we are debating the system of legally depriving some of the most vulnerable people of our society of their liberty—nothing can be important than that. Furthermore, it is unclear what assessment the Government have made of the burden this would place on the care home managers. This will account for more of their time, which is scarce in any event. It will also add new complexities to their role; perhaps the Minister might want to further tell us how the Government envisage a proper training programme and what resources will go alongside it to allow them to perform these new duties.

The concerns I have outlined are widely held. They have been expressed not just by me but also by a number of charities. It should be noted that the amendment before us has the support of the National Autistic Society, of which I am a vice-president, Age UK, the Alzheimer’s Society, the British Institute of Human Rights, Liberty, Mind, Rethink Mental Illness, the Royal Mencap Society, Sense, and VoiceAbility —we could go on. They have also been expressed by the Law Society. Those concerns are also held by professionals.

A survey carried out on the Government’s proposals by Community Care and Edge Training & Consultancy asked professionals whether they agree with the proposals that care home managers would carry out assessments. An overwhelming majority—86%—disagreed. My goodness, we could have those votes in some elections. It is certainly a very powerful message. That question also provoked the highest number of written comments and these are relevant to our debate. One said: “This is the most obvious concern with the new proposals: there is a direct conflict of interest with the provider”. Another said: “Where is the independent viewpoint?” A third said: “This process will be a waste of time at all levels if the initial process is not completed thoroughly”.

It is right that we subject this aspect of the Bill to thorough scrutiny. It was not part of the draft Bill produced by the Law Commission and therefore has not been spoken about and debated at length, as have other aspects. It has gathered significant criticism too, and we should be prepared to listen to that criticism. Therefore, the noble Baroness’s amendment strikes a very sensible balance. It ensures the independence of the assessment process, it alleviates some concerns about the independence of the pre-authorisation review, and it also secures the important role of care professionals in providing vital insight into the individual’s needs. I echo the noble Baroness’s requests for the Minister to give us his views on the conflict of interest that arises from this clause, and whether we may instead consider ensuring that any assessment is carried out by someone independent of the care home. This is a very important matter which we will be coming back to a lot, I am sure.

[Lord O'Shaughnessy]

My Lords, I am grateful to the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, for tabling these amendments and to all noble Lords who have given us the opportunity to explore what is obviously emerging as a critical part of the proposals in the Bill. As noble Lords have said, the amendments would remove the inclusion of care home arrangements from the Bill—that is, the duty of care home managers to arrange the various assessments—and instead substitute a duty on the responsible body to carry out those assessments while involving the care home manager in such cases.

In 2014, this House found that the DoLS process was bureaucratic and overly complex and that is what we are trying to address. We are trying to create a streamlined system that does not—the noble Lord, Lord Touhig, is right to warn that it should not—open the door to dishonest assessment, but rather make sure that everybody gets an appropriate assessment of whether their deprivation of liberty safeguards is in their interests, necessary, proportionate and so on. That is what we are seeking to do. I want to spend a bit of time going into this issue because I think there is a misunderstanding about what is proposed by the Bill.

Under the arrangements in the Bill, in care home cases, the care home manager would be responsible for arranging the assessments for the responsible body—not necessarily carrying out, but arranging; I will come to who carries them out in a moment. This would ensure that existing assessments and assessors who know the person best can be used where appropriate. Noble Lords have asked who will be carrying out these assessments. I will explain that in a moment.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, this is really integrally linked. I have been trying to look at what would send a red flag, an alert, to an authorising body that this assessment needed to be looked into in detail and gone through with a degree of rigour—possibly with more time being able to be spent on it than can be spent currently—and that, in commissioning care, the local authority will have a care and support plan that defines what it is commissioning. It should have done a needs assessment and should commission against that and what it expects to be provided. What comes back on those assessments should mirror that care and support plan. What I have tried to do with this amendment is to highlight that, if there is not an almost identikit fit, that should not be given a margin of error but should trigger the need to visit that person and to look in detail at the care plan and its delivery. That might be the first sign that all is not well.

It may be that someone from the local authority visits and finds that the care and support plan, as commissioned, has been altered slightly because the person’s needs or ability to undertake activity have changed. It may be, in the best of circumstances, that something has been put in place that has enhanced the person’s ability to express themselves. I would use the example of music, where it has been found that by providing people’s favourite playlists, some people with really severe dementia are almost “unlocked” by the music—they are able to move in time to the music and their mobility and communication are better. Some people who have been unable to speak, even for years, recover some phrases and then, from that, begin to communicate verbally as well. And of course, we all know of people who appear to not be able to communicate but will then sing along to their favourite song, with all the words coming back again.

The purpose of the amendment is to say that, if there is not a close fit, that should be enough for the local authority to say that it is going to look at that in detail. That was the motivation behind my amendment. I beg to move.

[Lord Touhig]

This is a very small but very important amendment. Having spent 27 years in newspapers and publishing, I constantly came across issues and stories where people were having all sorts of difficulties, public services failed and systems failed because of lack of information. Certainly from my time as a councillor, as an MP and as a Minister, I passionately believe that we must be open and transparent and must share information. That is key to this part of the Bill, and we certainly strongly support the points made by the noble Baroness.

I do not intend to detain the House more than that, other than to say that the noble Baroness, Lady Finlay, may not be aware that, when I was a Wales Office Minister and she was a new Member of this House, she terrified my officials. They would come in and say, “Minister, it’s that Baroness Finlay again; she wants information on so and so”. She is pursuing her quest for information even today, which I think is very important and valuable. We strongly support her efforts in this area.

[Lord O'Shaughnessy]

I am grateful to the noble Baroness for tabling this amendment and to the noble Lord, Lord Touhig, for endorsing it. I will not detain the House other than to say that, clearly, the intention to make sure that there is not a discrepancy and, where there is, that there is a flag, is one that we share. We need to be alert to any issues of concern that would warrant further investigation, or indeed referral to an AMCP.

This is something that I think best sits within the code of practice, and I can confirm and commit that instructions along these lines will form part of the code of practice, as well as many other examples of where an authorising body should be seeing signs of concern. I am grateful for the opportunity to confirm that, and I hope that reassures everyone.

Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 15th October 2018 Lords Chamber

[Baroness Watkins of Tavistock (CB)]

My Lords, I support this group of amendments in particular because many cared-for people can express their wishes in the ways people have said. I want to give your Lordships an example from when I was working as an in-reach mental health nurse into a range of homes for people with learning disabilities. There was a young man who was extremely happy in the home in which he had been placed because it was near his parents. They used to visit regularly and they used to be able to take him out together and accompany him, because he was not safe to be out unaccompanied. When his parents died he showed all the signs and symptoms that the noble Baroness, Lady Hollins, outlined, which the staff put down to the fact that he was distressed that his parents had died. Actually, that was in part true, but he was terribly sad that his sister could visit him only once a month because she lived 200 miles away. She was very willing to visit him more and to take him out accompanied but could not do that unless he changed his home and moved nearer to her.

This actually had a successful outcome, so it is not a depressing story, but Amendments 32 and 35 in particular would make it a duty for the care home in which such a resident was living to think again. This particular young man was a very high fee payer paid by the council because his needs were very complex. There was not much in it for the care home to arrange for his transfer because it would be quite difficult to fill the place at the same cost outside. I want to bring reality into the Committee in relation to these two amendments and explain why I am so supportive of us considering them in a positive vein.

[Lord Touhig (Lab)]

My Lords, the questions from the noble Baroness, Lady Barker, deserve an answer. I am sure that if the Minister cannot provide one tonight we will get one because she raised some very important points. The example that the noble Baroness, Lady Watkins of Tavistock, just gave gives us a practical idea of how these amendments might apply if they were part of the Bill.

Amendments 32 and 34 underpin the absolute need to discover the wishes and feelings of the cared-for person. Mencap summed it up pretty well in the briefing that it sent to noble Lords when it said that the views of the cared-for person should be at the heart of this clause. That point was made by my noble friend Lady Thornton during the debate on the first group of amendments today.

Putting the focus on ascertaining the wishes and, just as importantly, the feelings of the cared-for person is central to this, as is right and proper. I and others spoke about this at Second Reading and, frankly, we hope that the Government will respond positively to these proposals. Amendment 33 in the name of the noble Baroness, Lady Hollins, would address this by adding the cared-for person to the list of those who must be consulted, and Amendment 35 would ensure that views were sought on whether any less restrictive alternatives were available—all good sense.

When faced with legislation like the Bill and the issues it raises I often think, “If this Bill was about me, what would I want?” Most certainly I would want the protection and defence of my basic human rights that these amendments offer. Is this not something that every noble Lord in this House would want? If it is, we should ensure that it is there.

[Baroness Stedman-Scott]

I thank all noble Lords for their important contributions to these amendments. I agree completely with the noble Baroness, Lady Finlay, about the importance of ascertaining the cared-for person’s wishes and feelings when consulting as part of the liberty protection safeguards processes. Sometimes it is more important to listen to what is not said or expressed over and above that which is said. Watching people’s behaviour and demeanour can tell us a lot about how they are feeling. The noble Baroness, Lady Watkins, gave us a good example of somebody who lost their parents and was terribly distraught about it, although what was causing him most angst was being able to see his sister only for short periods because of the distance travelled. We must make sure, in taking through this Bill, that we do everything we can to read those signs and that people are empowered to make the best decisions.

On care home managers completing the consultation and how we ensure that alternatives are considered, I can say to the noble Lord, Lord Hunt, that a wide range of people are consulted. Previous consultations conducted by professionals often relied on things that were not meaningful or in the best interest of the individual. We want the least restrictive as a principle—a requirement of Article 5 in case law—that must be considered and will be set out in the code of practice. The code of practice will be very important.

I say to the noble Baroness, Lady Barker, that the care home manager would consider whether a decision was appropriate and the decision would be reviewed by the responsible body. Any family member, IMCA or appropriate person could challenge a decision not to consult the cared-for person. The Government are committed to making sure that the consultation around the cared-for individual is at the heart of everything. We must move heaven and earth to make sure that we understand exactly what they want and that the consultation is respectful in every way.

The Bill already outlines that the main purpose of the consultation is to ascertain the cared-for person’s wishes and feelings. This is to ensure that the liberty protection safeguards are consistent with the focus of the rest of the Mental Capacity Act, which places the wishes and feelings of the person, even if they lack capacity, at the heart of the process.

The noble Baroness is also right to highlight the importance of considering the impact of the arrangements on the person’s well-being. Similarly, we are also clear that we expect the impact of the arrangements on the person to be addressed when undertaking consultation. However, the purpose of the consultation would be to consider the impact from the person’s point of view. This is crucial to how the Mental Capacity Act works.

The concept of well-being is not mentioned in the Mental Capacity Act. It is a legal concept which has particular meaning under the Care Act and the Social Services and Well-being (Wales) Act. We are concerned that it would cause confusion if this concept were inserted into the liberty protection safeguards.

However, the liberty protection safeguards will be in place to support living and will be positive for a person’s well-being. The accompanying code of practice will outline how the model works within wider care provision, including the Care Act, which has duties in relation to promoting well-being.

The amendment in the name of the noble Baronesses, Lady Hollins and Lady Finlay, explicitly requires that the cared-for person be consulted. Noble Lords raised this issue on our previous day in Committee and I know that there is enthusiasm for this proposal, as it is felt that it will more clearly place the person at the centre of the determination of their wishes and feelings.

The Government have also heard very clearly that noble Lords felt that the person themselves must be consulted. Again, I agree. If we are to secure the improvements that we want, it is essential that the person and their voice, wishes and feelings about any proposed arrangements are placed at the heart of this model. We will make sure that the Bill reflects this. I am grateful for the expert views of noble Lords in helping to improve the Bill to put this beyond doubt.

I agree with the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, that it is important for those deciding whether an authorisation for deprivation of liberty should be given to consider whether any less restrictive options are available. Considering less restrictive alternatives is also an important aspect of the wider Mental Capacity Act. For example, the fifth principle of the Act requires decision-makers to have regard to less restrictive options. Nothing in the Bill changes this. The code of practice will set out how the liberty protection safeguards will work within the wider framework of the Mental Capacity Act and the care landscapes more widely.

Respectfully, therefore, I maintain that there is no need to add the words suggested by the amendments because they already form an integral part of the assessment process. We have made clear that the main purpose of the consultation duty is to ascertain the person’s wishes and feelings in relation to the authorisation, and this can include the person’s views about acceptable levels of restrictions.

For example, a person might wish to receive care in a care home where they have freedom to spend time in the community rather than in a care home where there is less freedom to do this. This might be because the conditions are less restrictive. This is an essential part of the liberty protection safeguards and is delivered through the assessment process. The noble Lord, Lord Touhig, made a very valid point when he asked whether we would want this for us. We must make sure that we treat people and respect them in the way we would like to be treated and respected ourselves.

I hope I have been able to provide a satisfactory explanation, but if there are outstanding concerns, I am happy to discuss them further. I trust that the noble Baroness will be able to withdraw her amendment.

Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Committee: 3rd sitting - (Hansard): House of Lords
Monday 22nd October 2018 Lords Chamber

[Baroness Barker]

My Lords, I have tabled one amendment in this group, Amendment 75. I do not wish to rehearse the arguments we had on the previous group but I want to put one question to the Minister. Why in paragraphs 36 and 37 do we suddenly see the term “relevant person” being introduced? It is quite confusing and I shall need to go back and look at Hansard. I do not want to make a wrong accusation, but I think there is confusion about the terms “relevant person” and “appropriate person”, when in fact they are two completely different things. My understanding is that a “relevant person” is either the responsible body or a care home manager, so why do we not talk about that? If that is what is meant, let us be up-front about it.

Amendment 75 asks why the appropriate person as we know them under the Mental Capacity Act has to have capacity to consent to being supported by an IMCA if the purpose is not just to put another hurdle in the way to make sure that these people—let us bear in mind that they do not have a right to be given information under this Bill—have to make a request of the care manager or the care home manager. The noble Baroness, Lady Thornton, is right to say that the Minister has talked about care home managers and care managers; they are different, but all of them have a potential vested interest in making sure that someone does not have access to an IMCA. That, I think, would be a gross dereliction.

[Lord Touhig (Lab)]

My Lords, these amendments go some way to ensuring that a cared-for person is not left without an independent mental capacity advocate or the support of an appropriate person. Much of the Bill as it stands represents what I think is a real assault on human rights. For heaven’s sake, we should be listening to the contributions of the noble Baronesses, Lady Hollins, Lady Barker and Lady Finlay, and that of my noble friend Lord Hunt. He has shared with me the email from the carers of HL and it is very powerful. My father was a miner and he would have said, “This is the experience from the coalface”. We can take this as an important contribution to understanding the difficulties that families face when they have to deal with the issues we are discussing.

Amendment 66 would give a local authority discretion to appoint an appropriate person or an independent mental capacity advocate without notification from a care home. Mencap and others have argued most powerfully that this amendment would minimise the risk of conflict of interest. That is important, as we have seen in other debates. It would mean that a care home arrangement could be more easily challenged and subject to scrutiny. Is not challenging and scrutinising what we do every day in this House? We challenge and scrutinise legislation brought forward by the Government; that is our role. Why would we deny that opportunity to the vulnerable people we are talking about in this Bill?

As it stands, the process for deciding whether to appoint an appropriate person or advocate requires a series of capacity assessments and best interest decisions made by the responsible body or the care home manager, even though both convention and domestic law have made it clear that there is no place for best interests in Article 5 appeal rights. Unless we effect change, this Bill will pass into law and we will see a cared-for person without the appropriate support of either an independent mental capacity advocate or an appropriate person—and that at a most crucial time in their life. That cannot be right. Amendments 76 and 77 are important if we are to ensure that the appropriate person gets the support they need for the role they have undertaken. We have had several long and important debates during the passage of the Bill. These amendments are reasonable and surely the Government must now start to listen.

[Lord O’Shaughnessy]

I thank all noble Lords who have put their names to these amendments and given us the opportunity to carry on what has been a very good discussion so far about the important role of IMCAs and, indeed, appropriate persons as well. I shall deal first with Amendments 65, 66, 67, 69, 70 and 76 as they relate to the circumstances under which a person can request an IMCA and under which an IMCA can be appointed.

As I said in the previous debate, it is our intention not to have any reduction in advocacy or support as a consequence of the Bill. Indeed, it is our position that a responsible body should be able to appoint an IMCA if there is a request by a cared-for person or family member and either a care home manger has not provided notification or the responsible body disagrees with the notification given. As I also said then, I recognise concerns that the circumstances under which an IMCA can be appointed would be narrowed as a consequence of the Bill, which is not something we want to happen. I do not want to rehearse the entire debate we had last time other than to say that it was a good one. I have assured noble Lords about what I want to take away from that, which is to consider the appropriate way in which we can go forward with the role of the care home manager while making sure that all concerns about restrictions to advocacy and so on are adequately put to bed.

I want to make a point on Amendment 75, which falls into this set of amendments, about why the term “relevant person” is used. I am not quite sure why, specifically; rather, I have an idea, but I do not want to get it wrong. It would be safer for me to write to the noble Baroness, Lady Barker, about why that phrase is used and circulate it to noble Lords. Certainly, this is already a complex piece of legislation with lots of terms and jargon; for goodness’ sake, let us not increase that, if at all possible.

I want to take up the challenge from the noble Baroness, Lady Barker, on rights to information. During the previous debate, I tried to make it clear that we will set out the right to information but rights to information—not rights to request it—have been strengthened by a variety of legislation, some of which has nothing to do with the care of people lacking capacity. I also said last time that we are reviewing the Bill to see if it needs to be revised to achieve the outcome that the noble Baroness wants. I know that she is concerned about this, but work is under way to try to resolve this issue.

Moving on, we have not previously discussed the term “appropriate person”, which relates to Amendments 73, 74, 77 and 80. This is a good opportunity to speak about the important role of the appropriate person in the new model. As noble Lords know, under the DoLS system the relevant person representative—we are getting into difficulties of language—can be a family member, a paid role or even an advocate. That can unnecessarily give rights to two separate advocates. There has been confusion about the purpose of the RPR and how it differs to advocacy. Our intention is that the appropriate person role will be clearer, not least because it is a familiar part of the Care Act, where the appropriate person facilitates the person’s involvement in the care process.

Obviously, that person provides a vital safeguard for the cared-for person. They are appointed to represent and support the cared-for person, ensuring that the person’s rights are protected and that the person is fully involved in decisions. As I said, that is already established under the Care Act for the purposes of caring. The role of appropriate person can be fulfilled by a family member, someone close to the cared-for person, someone with lasting power of attorney or a volunteer. I know from previous discussions how keen noble Lords are to make sure that the voice of the person is central to discussions about their care and the deprivation of their liberty. Clearly, the appropriate person has an essential role here.

The noble Baroness, Lady Hollins, asked specifically about the question of a right to act. It is all very well appointing somebody—they also have to be willing to be appointed—but when appointing an appropriate person or recognising one, the responsible body has to be confident that the appropriate person is prepared to act. Indeed, that is part of their appropriateness. Otherwise, an IMCA should be appointed. That satisfies the noble Baroness’s question at the beginning about an appropriate person being appointed, but not about what happens if they lapse or the process by which they, or their appropriateness, would be reviewed. As it stands, I will need to reflect on that further to explain it to her. The process may well happen through the regular reviews, but I need to take that question away and think about how we provide reassurance that the appropriate person is in a position to act and wants to do so. Clearly, if an appropriate person, not an IMCA, was appointed but not prepared to act, the cared-for person would lapse into a situation where they did not have somebody in their corner, which we are all trying to avoid.

--- Later in debate ---

[Lord Touhig]

My Lords, this group of amendments covers a range of things that need to be done before the commencement of the Act, and steps that should be followed later, as proposed by my Amendment 92. Noble Lords have made powerful arguments in favour of their amendments. In view of the lateness of the hour, I will confine my remarks to Amendment 92, tabled in my name, with the support of the noble Baronesses, Lady Tyler and Lady Jolly.

Amendment 92 would see two independent reports commissioned by the Government to be laid before Parliament within two and four years of the Act becoming law. The reports would provide a valuable update on how implementation was proceeding and would highlight areas for improvement. It has often been said that the Mental Capacity Act is a good piece of legislation that has been poorly implemented. If we want to see this Bill strengthened in all the areas we wish it to be, we will also need to monitor its implementation extremely closely, not least because the legislation affects some of the most vulnerable in our society and concerns their freedoms. Hundreds of thousands of people across England and Wales will be affected.

The amendment is modelled on the independent reviews that have accompanied the introduction of personal independence payments. The proposed report could look at a number of things: first, that decisions on whether someone’s liberty is restricted are truly being made in the best interests of the individual and not in the interests of providers or commissioners; secondly, that training is effective and ongoing and reinforces the rights of the individual; thirdly, that families and carers are involved and consulted as appropriate; and, fourthly, that advocacy is available to all who need it and is delivered effectively and impartially. Some very powerful arguments have been made in this short debate. I hope that the Minister will listen and that the Government will respond positively.

[Lord O'Shaughnessy]

My Lords, I am grateful to all noble Lords who have tabled amendments in this group. We have had a wide-ranging debate on areas where they would like to see various enactments, changes, reports and so on, before commencement and following implementation. I will attempt to deal with them thematically.

Amendment 86 requires that before commencement the Government must publish the code of practice and our response to the Mental Health Act review. Amendments 93 and 94 update Clause 5 to reflect this. I am happy to confirm that the Government will have published both of these before the new system commences.

Amendment 87 requires that the effectiveness of the Act is reviewed and a report laid in Parliament within a year of the Bill coming into force. As the noble Lord, Lord Touhig, just pointed out, Amendment 92 requires the Secretary of State to commission two independent reports on the operation of the new liberty protection safeguards scheme two and four years after the new system comes into force. Again, I am happy to assure noble Lords that the Government routinely conduct post-legislative scrutiny for all new Acts. The relevant guide says that within three to five years of Royal Assent the Government will be required to submit a memorandum to the relevant departmental select committee with a preliminary assessment of how the Act has worked in practice. I am happy to confirm that the Bill will receive such scrutiny and the Health Select Committee will be informed.

Amendment 87A, in the name of the noble Lord, Lord Hunt of Kings Heath, details requirements regarding a number of topics. As he pointed out, a number of these have already been addressed in our debates, including unsound mind, issues around advance consent, the availability of non-means-tested legal aid, and others. We have had a debate on the rules and guidance around IMCAs, which we are clearly going to take forward. He focused on tribunals. The Government are reviewing the courts and tribunals system but that review has not concluded. We are not proposing to change the position on the Court of Protection hearing challenges to liberty protection safeguards in the Bill precisely because there is not yet an opinion or a policy change from the Government with regard to a proposed new system. He also asked about the cost implications, which are outlined in our impact assessment, as he will know.

The noble Lord’s second amendment, Amendment 87B, seeks to make the CQC the regulator for the liberty protection safeguards. The Bill allows for bodies to be prescribed to report and monitor the scheme and it is absolutely our intention that the CQC takes on this role in England. It clearly has an important role in oversight of the new system, although we are concerned that his amendment would introduce additional layers of regulation. It should also be pointed out that the CQC is an England-only organisation; in Wales, the overseeing regulators are expected to be Healthcare Inspectorate Wales and Care Inspectorate Wales, which will both take on this role.

Amendment 87D was tabled by my noble friend Lady Barran and the noble Baroness, Lady Finlay. It would require responsible bodies to consider criteria to be published by the Secretary of State around best interests and the least restrictive option before authorisations are approved under the liberty protection safeguards. These are of course absolutely key principles of the Mental Capacity Act, and responsible bodies will have to consider them as part of any authorisation. As I have set out in previous debates, these factors already form part of the necessary and proportionate assessments, as well as other factors such as considering the wishes and feelings of the person. We will explain in the code how this assessment should be carried out and the factors that assessors should have regard to. I am grateful to my noble friend for some suggestions in that regard and I have just confirmed that the code would be published before commencement of the new scheme.

Amendment 87F, in the name of the noble Baroness, Lady Tyler, would remove the power of the Court of Protection to call for reports from local authorities and NHS bodies in cases relating to a cared-for person under the schedule. We think it is important, as I am sure she does, that the Court of Protection has access to such information but I heard the story that she told about an undue burden. I am certainly happy to commit to her that I will speak to colleagues in the Ministry of Justice to see whether there is any way that this process can be improved without removing the ability of the court to access the information it needs to make proper determinations.

Amendment 92A, in the name of the noble Lord, Lord Hunt, seeks to ensure that the liberty protection safeguards do not apply to any existing or pending DoLS authorisations. I can confirm that existing DoLS authorisations can continue until they are due for renewal or review. Clearly, depending on the final outcome of the Bill, the frequency with which those are renewed or reviewed will mean that there will be a steady stream of DoLS authorisations coming under the liberty protection safeguards in future, for those that are rolled over. Careful work will clearly need to be done with the sector to ensure that a tsunami of new authorisations does not happen but allowing for authorisations to continue under the previous system, until they can reach review or renewal, should go some way toward mitigating that risk.

Finally, Amendment 88, tabled by the noble Baroness, Lady Tyler, states that regulations should be subject to the affirmative parliamentary procedure and a consultation requirement. We have of course asked the Delegated Powers and Regulatory Reform Committee for its opinion on the regulation-making powers within the Bill and it has accepted that the negative procedure provides appropriate parliamentary oversight. As the Committee knows, we go against the DPRRC’s recommendations at our peril.

I apologise for detaining the Committee for six or seven minutes but I wanted to be thorough. I hope that I have been able to give the reassurances that noble Lords were looking for about the safeguards that we will put in place before commencement and the reviews of effectiveness to ensure that the system is working as intended. I hope that noble Lords will feel able to withdraw or not move their amendments.

--- Later in debate ---

[Lord Touhig]

My Lords, I have spoken several times in Committee about my concern that the Bill as it stands is an assault on human rights. I have also mentioned in past debates that I am proud of the reputation of the all-party British delegation to the Parliamentary Assembly of the Council of Europe, so ably led by Sir Roger Gale, which has a proud record of defending human rights in that body. Article 5 of the ECHR protects our right to liberty and security. It focuses on protecting individuals’ freedom from unreasonable detention as opposed to protecting personal safety. As a result of Article 5, your Lordships and I have a right to personal freedom. That means we must not be imprisoned or detained without good reason. The Bill before us is about the quality of life, and the care and the respect of some of our most vulnerable fellow citizens. This amendment is about giving our fellow citizens, who may not have the capacity to defend themselves in the way that we take for granted, the same rights that we enjoy.

[Lord O’Shaughnessy]

My Lords, this is a good way to finish our Committee proceedings. I thank the noble Baroness, Lady Thornton, and the noble Lord, Lord Touhig, for tabling the amendment, and I thank the noble Baroness, Lady Barker, for speaking to it.

Clearly, not only ought it to be the case that the Bill is compliant with Article 5 of the European Convention on Human Rights, but it is also important to make it clear, as I did at the point of the introduction of the Bill, that its provisions are compatible with Article 5. As noble Lords will know, and as becomes painfully clear when you become a Minister and you see your name on printed Bills giving these kinds of reassurances, that is a process that we need to go through before introducing legislation. Clearly, there are still concerns about whether the Bill can be improved in giving force, as the noble Lord pointed out, to the rights under Article 5. Nevertheless, it is my view that the Bill is compatible with the ECHR.

Furthermore, because of Section 3(1) of the Human Rights Act 1988, primary and subordinate legislation must be read and given effect to in a way that is compatible with convention rights. It is already the case that the Bill must be read and given effect to in a way that is compatible with Article 5. My concern with the approach here is therefore not so much one of repetition but one of partiality because it only talks about Article 5. There is therefore a risk that if we implied that this legislation had only to comply, or had a special duty to comply, with Article 5 of the convention rather than the whole convention, that would not reflect our responsibilities under the Human Rights Act. Indeed, it could downplay critical protections that exist in the ECHR, such as the Article 8 rights to family and private life. So while I understand the motivation behind tabling the amendment and using it as an opportunity to rehearse some of the desire to improve the actions that will safeguard the liberty and security of the person, I do not think it is right to put such a clause in the Bill precisely because the Government have a broad responsibility to ensure not only that the Bill is compliant but that it is read and given effect to in a way that is compatible with all convention rights.

I hope that has provided reassurance to noble Lords that our intention, and indeed our obligation, is to provide not only for those Article 5 rights but for all other rights that apply under the ECHR. I hope the noble Baroness will feel able to withdraw her amendment.

Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Report: 1st sitting: House of Lords
Wednesday 21st November 2018 Lords Chamber

[Lord Touhig (Lab)]

My Lords, we have had some very useful and, more often than not, constructive engagement with the Government during the passage of this Bill. The success of our collaborative working is certainly demonstrated in these amendments extending the provisions to 16 and 17 year-olds.

In the very early days of its thinking on this point, the Law Commission commented on the poor knowledge among health and social care professionals about how the Mental Capacity Act 2005 applied to 16 and 17 year- olds. A subsequent report stated:

“There are likely to be a range of issues that are specific to young people that will need to be included in guidance and/or codes of practice”.


The report went on to argue the need for dedicated training for professionals working with this age group and highlighted areas such as children’s services, mental health services, children and adolescent mental health services and adult mental health services, as well as schools. As an aside, my noble friend Lady Massey of Darwen is currently writing a report for the Council of Europe addressing the health needs of adolescents in Europe, and I look forward to reading it.

On this very important matter, the Minister and his team should be congratulated on recognising that 16 and 17 year-olds are vulnerable to slipping through the gaps that the Bill would create for them if they were not included. This is a vitally important change to the Bill—many of the stakeholders consulted listed this as one of their main concerns. Extending the age to cover 16 and 17 year-olds will ensure that some of the most vulnerable young people can access adequate help and be empowered. On this side, we strongly support the amendments.

Amendment 5 agreed.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness on the assessments. The Minister’s amendment is very welcome, but clearly the assessment is crucial. My understanding is that in previous debates, as the noble Baroness suggested, he said that the code of practice will set out which competencies will be needed to carry out this assessment. Like the noble Baroness, I ask him to consider, perhaps between now and Third Reading, whether this might be better put in regulations than in the code of practice. I always worry a bit about the use of “competencies”. It is a word now used in many recruitment processes, but what exactly does it mean? Will it be done by a registered medical practitioner with sufficient expertise in this field? If not, what is the justification? The change the Government have made is enormously welcome, but it is very important that we are confident the assessment will be carried out appropriately.

[Lord Touhig]

My Lords, this group of amendments is most welcome. The term “unsound mind” is offensive in the extreme and historically has been used as a form of abuse to demean the dignity of the person to whom it is applied. These amendments mean that this old-fashioned term will no longer be in the Bill and that a phrase with no clinical meaning is rightly removed. Using the same term as the Mental Health Act, “mental disorder”—this link is explicitly made by the Government in Amendment 12—provides better diagnostic clarity.

Amendments 25 and 50 in the names of my noble friend Baroness Thornton and the noble Baroness, Lady Jolly, change “unsound mind” to,

“any disorder or disability of the mind”.

The Minister responded to those points in his opening speech. This is the language currently used under the DoLS in the Mental Health Act and it is to be welcomed.

Perhaps I may share with the House my personal experiences. My late mother suffered two nervous breakdowns in her life. One occurred before I was born, when she was put into an institution, where I do not think she was well treated. Later, she suffered a further breakdown when I was 16 and I had to take the lead, coping with and co-ordinating help and support for her, my father and our family. The consequences of her breakdown that I witnessed were traumatic not only for my mother, who was a loving, kind and thoughtful individual, but for our family, who witnessed times when she seemed to grow away from us.

My mother made a recovery and we all came through it, thanks to the devotion and understanding of our family doctor, our wider family and friends. However, our family experience has given me an understanding of some of the consequences of mental illness for individuals and their families. Families who experience what mine went through need support and understanding to cope, which is why I welcome the amendments.

I have said that the term “unsound mind” is used to cover many things. It is one that personally I find offensive, and I rejoice that those words are being removed from the Bill.

[Lord O’Shaughnessy]

I thank all noble Lords for their support for these amendments. I also thank the noble Lord, Lord Touhig, for sharing with us that story. It brings into sharp perspective the consequences of language and culture in the way that people are treated. We are trying to move to a more compassionate and comprehensive system of helping people who reach mental health crises. I appreciate him sharing that story, which was very moving.

Perhaps I may deal quickly with the questions raised by noble Lords. The noble Baroness, Lady Finlay, asked whether long-term brain injuries would be included. The answer is that they would. The reference that I made was to the potential short-term impacts, which we would not necessarily want to capture in this definition. On her question about palliative care, my understanding—I will certainly confirm it, as I have not seen the letter—is that it still applies. I think that is the reassurance she was hoping to get.

In relation to the question raised by the noble Baroness, Lady Hollins, and the noble Lord, Lord Hunt, about the assessment of a condition by a doctor, case law requires that such an assessment should be carried out by somebody who has objective medical expertise. In practice, that means a registered physician. Therefore, that reassurance already exists in jurisprudence, but I accept the importance of the point raised—that, perhaps except in an incredibly rare emergency, that kind of diagnosis should always be made by somebody with that level of competence or skill qualification, however you want to define it. I will write to noble Lords explaining the position as it stands in law and why we think that it gives the protection and reassurance they are looking for. We can then perhaps follow that up with a discussion if there are any remaining concerns. I certainly agree that this is an important issue.

I hope that I have dealt with noble Lords’ questions and I thank them again for their support and the challenge that has got us to this point of moving forward.

--- Later in debate ---

[Lord Touhig]

My Lords, I too welcome the amendments and I thank the Minister and his team for the meeting we had earlier this week. He will recall that I raised my concern about different regimes operating in different parts of the country. A responsible body in my borough might decide that it alone would take responsibility for putting together applications, while in the next-door borough the care home manager and so on might be involved. I wanted to look at how we could get to a common approach right across the country. The Minister has helpfully sent us an excellent letter in response to the points I and others raised. In it he states:

“We wish to work with a wide range of stakeholders on developing the code of practice”.


Is he yet in a position to tell which stakeholders he will be consulting? Perhaps he could write and tell us at a later stage, because it would be awful if we left someone off who could make a valuable contribution to this work. The Minister goes on to say:

“We are beginning to develop a programme for the new Code of Practice for the Liberty Protection Safeguards, working alongside the Ministry of Justice. The MoJ is also about to start a project to review the Code of Practice for the wider Mental Capacity Act too, so we will have the opportunity to work on both”.


How does he plan for the two departments to consult between them with stakeholders when looking at the code of practice? Will he consider whether it would be worth setting up a group of interested parties who could act as a sounding board? As the code is developed, similar to what we have done with the Armed Forces covenant, we could bounce ideas off a group which might have an interest and make a contribution. Perhaps we could do something along the same lines. That might ensure that when in the end we get the code of practice, it will have widespread support and be of great benefit to those who we are concerned about.

[Baroness Thornton]

My Lords, I am grateful to the Government for tabling this suite of amendments which, as they say, change the position of care home managers from the original proposal to give them a significant role in applying the liberty protection safeguards—the scheme that is to replace DoLS in care homes. As the Minister said in his comprehensive introduction of this large group, they are a combination of technical amendments and others which are very important indeed. The amendments headed by government Amendment 30 are particularly relevant because they give the responsible body the ability to decide in certain circumstances to take over the authorisation functions in care homes in certain settings. The Government have said that they will set out the details in the code of practice. I shall return to the issue of the regulations and the code of practice in a moment.

Government Amendments 52 and 66 are equally important because they deal with conflicts of interest. The Government have said that the regulations will set out in detail the prescribed functions. I just want to ask a technical question. We do not quite understand why Amendment 78 has been severed from Amendment 73, which it seems to sit with; they are kind of twins and need to be taken together. I realise that we will be dealing with Amendment 73 next week, but they are very important amendments which give regulation-making powers, allowing the appropriate authority to make provisions about what constitutes a connection with a care home. They are also about conflicts of interest.

Amendment 90, as the noble Lord has said, gives the responsible body the ability to decide on the renewal of authorisation functions in care home settings. Listening carefully to what the Minister said when he introduced these amendments, one of the issues they raise is what goes in regulations and what goes in the code of practice. This has been a theme that we have discussed all the way through. It seems to me very important—and I seek reassurance from the Minister on this—that what goes in regulations is matters relating to powers and protection of the individual, and what goes in the code of practice is how those are carried out. Both are very important documents and it is important to address this, so that the right things go in regulations and the issue is comprehensively covered.

It is clear from the debates we have had throughout consideration of the Bill that we welcome the change of heart on policy. Some clarification and explanation will still be required as we move forward, but this suite of amendments does address the important issue of conflicts of interest in the powers of the care home manager and puts the interests of the cared-for person at the heart of the Bill, as they should be. It was clear from the beginning that this issue is of huge concern to all stakeholders on the Labour Benches, as well as across the House. That is why we submitted the suite of amendments early after Committee—strong amendments which addressed and fundamentally changed the role of the care home manager.

Noble Lords will see that the next group of amendments in the list are mine and are supported by the noble Baronesses, Lady Jolly and Lady Watkins. I thank them most sincerely for their support very early in this process. We went through the Bill and removed reference to, or significantly changed the role of, the care home manager. This group starts with Amendment 13, which I would like to assure the Minister, as I did the Bill team, I will not be moving today. These amendments were designed to specify the responsibilities of what we called the “nominated body”—in other words, a qualified body nominated by the responsible body in relation to the authorisation of care home arrangements. That suite of amendments makes it clear that the care home manager’s role is to co-ordinate the required information, determinations and assessment, rather than to carry them out. I am very glad that the Minister used almost exactly those words. What we call the nominated body will be designated by the responsible body. All the subsequent amendments in this group take powers away from the care home manager and replace them.

I was in the Minister’s place many years ago. Seeing these amendments coming down the track with support from across the House—and, indeed, the amendments tabled by the noble Baroness, Lady Finlay, which were sometimes even more radical in their intent—the Minister, the Bill team and his advisers were very wise to take a second look when one considers that all the stakeholders took the same view, without exception, I think. I agree with the noble Baroness, Lady Barker, in that I regret that we met such obduracies, which is what they felt like from our point of view, from the Government in the early stages of the Bill about the role of the care home manager. That meant that we did not spend enough time on other issues that we should have addressed. We did not spend enough time on CCGs, the NHS and the place of local councils in delivering the new arrangements, as my noble friend Lord Hunt mentioned. We did not spend enough time examining the funding and resourcing of the new arrangements. The Minister got off quite lightly on those issues; I am sure that my honourable friends in the Commons will make up for where we lack in this area.

The test of the amendments is whether they fulfil the aims of the suite of amendments we tabled all those weeks ago. We are applying that test today. Can the Minister confirm that the government amendments would give the responsible local authorities the option of giving these roles to the care home manager or taking the responsibilities on themselves and, most importantly, that the care home manager will no longer be responsible for notifying the responsible body whether an IMCA should be appointed in any case? In Amendment 78, it seems that care home managers would not be able to commission anyone with a prescribed connection to the care home. That is to be welcomed.

As far as we are concerned, these amendments are lacking on the issue of—is it the AMPS?

Mental Capacity (Amendment) Bill [HL]

Lord Touhig Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 27th November 2018 Lords Chamber

[Lord O'Shaughnessy]

My Lords, the amendments in this group provide clarification regarding the form of the statements provided by the care home manager to the responsible body. I thank noble Lords and others outside the House who highlighted some issues that these amendments attempt to address.

Amendments 41 and 96 outline that the statements provided by the care home manager to the responsible body under paragraphs 14 and 28 must be in writing. This issue was rightly raised by the noble Baroness, Lady Barker, and others at Second Reading and in Committee. It has always been the Government’s intention that the statement be a written one, and I gave assurances to noble Lords during Committee that the Bill would be updated to be explicit on this.

Passing these amendments, although they are simple and straightforward, is important, because it will mean that care homes are not able to provide statements over the telephone, as sometimes happens now. This is a valid concern about the future system. The amendments will help to ensure the quality of assessments and pre-authorisation reviews, and that there will always be a written record of the basis for decisions. It is vital that statements be in writing in order for a thorough pre-authorisation review to be completed and for proper evidence of assessments and consultation to be provided.

Under the current DoLS system, care homes are required to complete a “form 1” when making an application. We envisage that under the liberty protection safeguards there will be a similar form, updated and tailored to the new system. I hope this amendment makes it clear to all noble Lords that the Government do not want to see any weakening of safeguards as a result of our reforms.

Amendments 47 and 59 clarify that the necessary and proportionate test is based on an assessment, and that the care home manager’s statement under paragraph 14 must be accompanied by a record of that assessment and a record of the medical and capacity assessments. This was always the Government’s intention. Its omission was a simple drafting error, for which I apologise and which we are now rectifying.

I hope noble Lords will be able to support these minor but vital amendments, which will clarify how the system works in practice. I beg to move.

[Lord Touhig (Lab)]

My Lords, at Second Reading I said that there was much to be concerned about in this Bill and that I really hoped the Government would be in listening mode. For the most part, the Government have listened and have made improvements, thanks to the willingness of the Minister and Bill team to listen and to the hard work and commitment of noble Lords on all sides of the House, who have pursued improvements with all the energy they could command.

Government Amendments 41 and 96, requiring a care home manager to provide a written statement to the responsible body to authorise and renew arrangements, seem pretty obvious. Most of us would think that it is common sense to provide a statement in writing, but my late mother would often lament that I would find that, in life, sense is not that common. We certainly welcome these amendments.

The same applies to Amendments 47 and 59, which will ensure that the determination that arrangements are necessary and proportionate is to be made in an assessment, and that a record of this assessment must accompany the statement from the care home manager to the responsible body before an order to authorise arrangements is made. This is also most welcome. On this side, we certainly welcome these amendments.

[Baroness Barker]

My Lords, I also welcome these amendments and want to make a brief observation. Since the summer, like many other noble Lords, I have spent a great deal of time talking to practitioners and stakeholders. If one were to try to thoroughly amend and improve the DoLS and LPS systems, you would start not with the role of the care home manager but with the paperwork and the bureaucracy. Before the code of practice is written, the Government would do well to spend some considerable time talking to local authorities and practitioners about paperwork and communication, because that is perhaps the biggest cause of the backlog of people who have yet to have a proper assessment.

I hope that the Minister will take on board what noble Lords have said on this matter. It is not a commitment to the current way of doing things; rather, although noble Lords are committed to ensuring that people are sufficiently informed, we are not averse to changing and modernising the systems to make them work more efficiently.